Judgment SANJAY YADAV, J. ( 1. ) Short but a substantial question raised in present writ petition is as to whether an imposition of penalty under Section 43(1) of M.P. General Sales Tax, 1958 (for short "the Act of 1958") without establishing a mens-rea would be justified. ( 2. ) The facts in nutshell are that the petitioner is a statutory undertaking of the Government of India carrying on business in food grains and a registered dealer under the Act of 1958. The petitioner was assessed to Sales Tax for period 1.4.1981 to 31.3.1982 by order dated 19.8.1985, whereof, a penalty of Rs.7,73,000/- was imposed under Section 43(1) of the Act of 1958. The imposition of penalty was for the reason that the petitioner had paid less tax. Being aggrieved, petitioner preferred an appeal, whereof, by order dated 14.11.1986, the matter was remitted on the question of penalty and on some other points. This order was put to challenge before the Board of Revenue; whereupon the Board declined to entertain being premature. By its order dated 3.2.1988, the assessing officer after remand, passed an order dated 19.3.1991 imposing a penalty of Rs.7,72,325/-. An appeal preferred against this order met with negative result by order dated 31.7.1991, and the revision under Section 39(1) of the Act of 1958 met with same fate by order dated 7.9.2000. It is this order, which is being put to challenge and the challenge is confined to the imposition of penalty under Section 43(1) of the Act of 1958. ( 3. ) It is urged on behalf of the petitioner, that the facts and circumstances of the case did not warrant imposition of penalty under Section 43(1) of the Act of 1958, which could be only after establishing a mens-rea and the assessee being a Government of India undertaking, mens-rea ispo-facto cannot be inferred. The learned counsel for the petitioner, while placing reliance on the case of Food Corporation of India V. Commissioner, Sales Tax: 22 VKN 28 contended that the authorities below committed an error in not accepting the explanation offered for the differences between the tax assessed and tax returned on erroneous interpretation of Section 43 of the Act of 1958. It is accordingly, stated that the penalty imposed under Section 43(1) of the Act of 1958 is bad in the eyes of law, and therefore, the same deserves to be set aside. It is accordingly, stated that the penalty imposed under Section 43(1) of the Act of 1958 is bad in the eyes of law, and therefore, the same deserves to be set aside. ( 4. ) Learned Government Advocate appearing for the Revenue however, supported the order under challenge and, contended that the petitioner is a habitual evader of tax and the mens-rea was writ large in the action of the petitioner which deliberately did not furnish accurate particulars of its turn over and paid less tax. Placing reliance on the return, that, while conducting the proceedings of assessment and on being prima-facie satisfied, regarding the fact of submission of incorrect returns, as well as revised return by the petitioner corporation to show cause as to why the penalty be not imposed under Section 43 of the Act of 1958 and after satisfying itself of the intention of the assessee of the concealment of the true and correct facts and figures, the penalty under Section 43(1) of the Act of 1958 was imposed. It is stated that the explanation tendered by the petitioner corporation were not sufficient enough to absolve it from the charge of suppression, the action of suppression, it is submitted, loudly suggested about the mens-rea. Accordingly, it is urged, that there is no discrepancy in the imposition of penalty. The respondents relied upon the judgment rendered by this Court in the matter of Food Corporation of India Bhopal Vs. Commissioner of Sales Tax, Madhya Pradesh (1983) 16 VKN 275. It is further contended that the petitioner was under statutory obligation to have furnished accurate returns and that having not been done on the ground that it is a vast organization will not in itself be a ground for absolving the petitioner from penalty. Section 43 of the Act of 1958, it is contended, contemplates a show cause notice and a decision thereafter taking into consideration the explanation tendered. In the instant case, it is stated that, the explanation being not satisfactory, the penalty has been imposed. The learned Govt. Advocate attempts to distinguish the judgment of (22) VKN 28 on the ground that the issue in said case was whether a penalty under Section 43 can be imposed without considering the explanation or without recording a finding that the explanation offered by the assessee was false or not acceptable. The learned Govt. Advocate attempts to distinguish the judgment of (22) VKN 28 on the ground that the issue in said case was whether a penalty under Section 43 can be imposed without considering the explanation or without recording a finding that the explanation offered by the assessee was false or not acceptable. Whereas in the instant case, it is stated that a proper opportunity was afforded to the petitioner and its only after considering the explanation tendered that an order of penalty was inflicted, which cannot be found fault with. 4. Considered the rival submissions. ( 5. ) Before entering into rival submissions worth it would be to take note of Section 43 of the Act of 1958 which is in the following terms :- 43. Power of Commissioner or appellate authority to impose penalty- (1) If the Commissioner or the Appellate Authority in the course of any proceedings under this Act is satisfied that the dealer has concealed his turnover or the aggregate amount of purchase prices in respect of any goods or has furnished inaccurate particulars of such sales or purchases, as the case may be, or furnished a false return, the Commissioner or the appellate authority as the case may be, after giving the dealer a reasonable opportunity of being heard, may direct that the dealer shall in addition to the tax payable by him, pay by way of penalty a sum, which shall not be less than 20 percent but shall not exceed one and one-half times the amount of the tax, if any, which would have been avoided if the returns furnished by the dealer had been accepted as correct or the concealment of the sales of purchases or inaccurate particulars of sales of purchases had not been detected. (2) If the total tax returned by the dealer is less than 80 percent of the total tax assessed under Section 18, such dealer shall be deemed to have concealed the particulars of his turnover or aggregate of his purchase prices for the purposes of this Section unless he proves that the failure to return the correct turnover or aggregate of purchase prices did not arise from any fraud or gross or willful negligence on his part. ( 6. ( 6. ) The provision contemplates imposition of penalty in case dealer has concealed his turnover on the aggregate amount of purchase prices in respect of any goods or has furnished inaccurate particulars of such sales or purchases, or furnished a false return, the provision being penal in character, mens-rea would be accurate return and unless the Commissioner or the appellate authority is satisfied that the inaccurate return was infested with mens-rea no penalty can be imposed. ( 7. ) Similar and other provisions have been considered by the Supreme Court and by this Court in various cases. ( 8. ) In the case of M/S Hindustan Steel Ltd. Vs. State of Orissa : AIR 1970 SC 253 , wherein paragraph 7 their Lordships of the Supreme Court were pleased to observe: "7.Under the Act penalty may be imposed for failure to register as a dealer: Section 9(1) read with Section 25(1) (a) of the Act. But the liability to pay penalty does not arise merely upon proof of default in registering as a dealer. An order imposing penalty for failure to carry out a statutory obligation is the result of a quasi criminal proceeding, and penalty will not ordinarily be imposed unless the party obliged either acted deliberately in defiance of law or was guilty of conduct contumacious or dishonest, or acted in conscious disregard of its obligation. Penalty will not also be imposed merely because it is lawful to do so. Whether penalty should be imposed for failure to perform a statutory obligation is a matter of discretion of the authority to be exercised judicially and on a consideration of all the relevant circumstances. Even if a minimum penalty is prescribed, the authority competent to impose the penalty to be justified in refusing to impose penalty, when there is a technical or venial breach of the provisions of the Act or where the breach flows a bona fide belief that the offender is not liable to act in the manner prescribed by the statue". ( 9. ) Similarly, in the case of The Cement Marketing Co. of India Ltd. Vs. Asst. ( 9. ) Similarly, in the case of The Cement Marketing Co. of India Ltd. Vs. Asst. Commissioner Sales Tax, Indore and others, (1980) 45 STC 197(SC), the Supreme Court while construing the old provisions of Section 43, observed that Section 43 of the Act, "providing" or imposition of penalty is penal in character and unless the filing of an inaccurate return is accompanied by a guilty mind, the Section cannot be invoked for imposing penalty. Their lordships were pleased to observe at page 200 as under: "It is possible that even where the incorrectness of the return is claimed to be due to want of care on the part of the assessee and there is no reasonable explanation forthcoming from the assessee for such want of care, the court may, in a given case, infer deliberateness and the return may be liable to be branded as a false return. It is elementary that section 43 of the Madhya Pradesh General Sales Tax Act, 1958, providing for imposition of penalty is penal in character and unless the filing of an inaccurate return is accompanied by a guilty mind, the section cannot be invoked for imposing penalty." ( 10. ) The principle of law which emerges from various authorities that an existence of a guilty mind with inaccurate return would lead to imposition of penalty and not alone the inaccurate return. ( 11. ) The principle regarding existence of guilty mind is expressed in the maxim- Actus non-facit reum nisi mens-sit-rea, meaning thereby the intent and act must both concur to constitute the crime (hereinafter referred to as mens-rea). By mens-rea is meant some blameworthy mental condition, whether constituted by knowledge or intention or otherwise when a statute, as the present one, creates that an inaccurate return would be an offence and as has been held in catena of cases, noted supra, that only an existence of a guilty mind would lead to an imposition of penalty. The question than arises as to what are the conditions which must be satisfied, if the presumption as to mens-rea is to be rebutted. The question than arises as to what are the conditions which must be satisfied, if the presumption as to mens-rea is to be rebutted. According to Lord Evershed, then, two conditions must be satisfied, viz, strict liability must be "required to give practical effect to the legislative intention" and the person charged with a breach of the statutory requirements must have had some opportunity of furthering their observance (please see Vane V. Yiannopoullos (1965) AC 486 per Lord Evershed page 500: quoted in Maxwell on the Interpretation of Statues: Twelfth Edition by P.St. J.Langan : at page 124). ( 12. ) The Supreme Court in the case of Union of India Vs. Ganesh Das Bhoraj: AIR 2000 SC 1102 , while approving the opinion of Wright J in Sherras V.D. Rutzen: (1985) 1 QB 918, 922, observed that the doctrine that mens-rea is an essential ingredient in every offence has three recognized exceptions: (i) cases not criminal in any real sense but which in the public interest are prohibited under a penalty, (ii) public nuisance; and (iii) cases criminal in form but which are really only a summary mode of enforcing a civil right. ( 13. ) In the case at hand the petitioner, a registered dealer, is under a statutory obligation to furnish accurate particulars of sales and purchase and an inaccurate particulars renders him liable for penalty, subject to, the explanation about inaccurate particulars. The explanation which is tendered by the petitioner in response to a show cause notice discloses the fact that the branches of the petitioner being located at various places it takes time to collect the information regarding sales and purchase and the discrepancies/differences is observed after the completion of audit. The explanation was considered by the assessing officer in the following terms: ( 14. ) Having thus considered, and keeping in view the fact that an opportunity to explain was afforded to the petitioner and after considering the explanation tendered by the petitioner the competent authority being satisfied that no plausible explanation is tendered by the assessee petitioner and having regard to the judgment rendered by this Court in the case of Food Corporation of India Bhopal Vs. Commissioner of Sales Tax, Madhya Pradesh: (1983) 16 VKN 275, this Court does not find any substance in the challenge put forth to the order imposing penalty under Section 43(1) of the Act of 1958. Commissioner of Sales Tax, Madhya Pradesh: (1983) 16 VKN 275, this Court does not find any substance in the challenge put forth to the order imposing penalty under Section 43(1) of the Act of 1958. ( 15. ) In the result the petition fails and is hereby dismissed. No costs. Petition dismissed.